THE FEASIBILITY OF ASSOCIATE EU CITIZENSHIP FOR UK CITIZENS POST-BREXITA study for Jill Evans MEP, by Prof. Volker Roeben, Prof. Jukka Snell, Dr Pedro Telles, Dr PetraMinnerop and Mr Keith Bush QC

Swansea University

June 2017

Executive summaryThis report has five principal findings on the protection of the status of Union citizenship and therelated rights post-Brexit. First, the key question as to providing this protection is whether UnionCitizenship continues post-Brexit, or whether Brexit extinguishes Citizenship. The report considersthat continuity (“Continuity”) is the more convincing interpretation of European Union law andinternational law as it stands, but it also considers the alternative of creating the new status ofAssociate Citizenship of the Union for British nationals (“Associate Citizenship”) with related rights.Second, the report identifies two possible means of realising these models: i) legislation by theUnion to clarify Continuity and ii) the Withdrawal Agreement between the EU and the UK enshriningAssociate Citizenship or Continuity. Third, it is established that no revision of the Founding Treatiesis needed, irrespective of the model followed. Fourth, UK citizenship law is highly flexible in line withthe principle that individuals ought not to be stripped of citizenship against their will. Fifth,devolution in the UK entails that Wales may have a considerable responsibility to protect UnionCitizenship rights post-Brexit.

I. The options: Continuing Union Citizenship or creating the new status of AssociateUnion Citizenship

The first option the report proposes can be called “Continuity Union Citizenship”. This continuityreflects the state of European Union law post the Treaty of Lisbon, whereby Union citizenship is thefundamental status of individuals that cannot be taken away. However, the rights themselvescontained within citizenship can change over time.

Thus, nothing in the status quo would change as the result of Brexit, neither for the Union of citizensof British nationality on the territory of the Union nor for the Union citizens of EU27 nationality inthe UK. EU and UK action would clarify the existing legal situation, even if not strictly necessary. Thiscontinuity relates to Citizenship free movement rights that have been exercised or will have beenexercised at the time the UK withdrawal becomes effective. The dormant rights of those residing intheir own Member State of withdrawal are different in that no legal situation has been created yetto continue.

Continuity also reflects the state of international law. The 1969 Vienna Convention on the Law ofTreaties (VCLT) will be binding on all remaining Member States, the UK, and the EU itself post Brexit.It ensures that the status and rights of those EU citizens resident in the territory of the Union andthose resident in the UK will continue. Art. 70(1)(b) of that Convention provides that ‘legalsituations’ created during the currency of the Treaties continue after the withdrawal. That coversthe situation of nationals of Member States that have been admitted to and reside in anothermember pursuant to the Treaties. These go on after withdrawal unchanged. Art. 70(1)(b) of theVienna Convention also continues ‘rights’ of individuals derived from treaty. As the fundamentalCase 26/62 van Gend en Loos makes clear, the Founding Treaties of the EU grant rights directly toindividuals. This interpretation of the Convention that ongoing situations and rights continue issupported by the overriding objective to ensure legal certainty and to prevent withdrawals fromtreaty having any retroactive effect. It is also supported by state practice.

There is, however, a reading of European Union law and Art. 70(1)(b) of the Convention that the exitof a Member State pursuant to Art. 50 TEU extinguishes all rights of individuals created by theFounding Treaties. If one were to adopt that reading, then European Union law and international lawwould at least demand that a treaty be negotiated on Associate Union Citizenship, which the reportdiscusses as an alternative model. In this second case, the status that emerges as AssociateCitizenship and the bundle of rights that go with it will have to be defined. EU action would haveconstitutive effect. Whether there should be any distance from the bundle of rights that come withfull Citizenship is a political question.

A third option is an individual opt-in for British nationals, conferring an exclusively personal status.This option is the furthest from the law as it stands and will therefore not be explored in this report.

II. Legislation to enshrine Continuity Citizenship

The Union could legislate on Citizenship post-Brexit. The available competences, set forth in Art. 21-24 TFEU, empower the Union to legislate to that effect.

Such legislation will only have a clarificatory role in the case of Continuity as a matter of logic. Thislegislation to continue citizenship would essentially extend the law as laid down in Directive 2004/38and Regulation 492/2011, and would also codify the rights that are recognised in the case law of theCourt of Justice of the European Union. It would protect the rights of permanent residents and thelegitimate expectation of others to obtain that status for a defined period of time. It could alsoprotect dormant rights.

The legislation would protect British nationals in the EU. It would not, however, have any bindingeffect in the UK post-Brexit. While Continuity does not change anything, the best way to protect andmake those rights of EU27 nationals enforceable is to include them in the Withdrawal Agreementeven though it is not technically necessary.

III. The Withdrawal Agreement as a means to achieve either Continuity or AssociateCitizenship

The alternative means is a treaty between the EU and the UK, the so-called Withdrawal Agreement.That treaty will be binding on the EU and the UK as international law post-Brexit. Two new statusescould be created in the treaty. Associate Union Citizenship for British nationals could be matched byan Associate British Citizenship for Union citizens from the remaining Member States.

This agreement should be based on reciprocal protection of exercised citizenship rights of Britishnationals in the EU and for EU27 nationals in the UK. Dormant rights to free movement could beprotected in the agreement for a defined period of time after the entry into force of the WithdrawalAgreement. The political rights would be part of the whole package of rights included in theagreement. Thus, a resident on the territory of the Union would be allowed to vote and stand for theEP in their host Member States, represented by the members of parliament allotted to that MemberState. Union citizens resident in the UK would vote in the Member State of their last residence.

The agreement will have to have two pillars. The first pillar comprises the rules that concern Britishnationals in the Union territory. These rules will automatically become part of Union law and as suchbe directly applicable before the courts of the remaining Member States. Directives and regulationsto implement it might still be needed, though, given the limitations of direct effect and the need forcertainty and clarity. The second pillar comprises the rules concerning EU27 nationals in the UK.Under UK constitutional law, these international rules will have to be transformed into nationallegislation to become internally applicable.

UK citizenship law is highly flexible. It has created differentiated statuses with related rights. Animportant principle underlying that flexibility is that individuals may not be stripped of theircitizenship as result of territorial changes. That principle should apply to the protection of Unioncitizenship.

Judicial protection of these treaty-based rights would also be organised along this two-pillaredstructure. The national courts of the EU27 would adjudicate the rules applying in the Union territory.They would be able to refer questions to the European Court of Justice under Art. 267 TFEU. Britishcourts would adjudicate the rules applying in the UK. They would no longer be able to seize theEuropean Court.

That has to be reinforced by a mechanism to settle disputes that may arise between the EU and theUK relating to the agreement. Two such mechanisms are conceivable. An international court ofarbitral tribunal may be created. The agreement would then have to include provision to protect theexclusive jurisdiction of the ECJ for the interpretation of EU law. Alternatively, the agreement couldconfer jurisdiction of the European Court of Justice.

IV. No need for revising the Founding Treaties

This report furthermore concludes that neither continuity citizenship nor associate citizenshiprequire any revision of the Founding Treaties. The provisions on Union citizenship, Art. 20-25 of theTreaty on the Functioning of the European Union, are to be interpreted as not standing in the way ofprotecting citizenship status and rights post-withdrawal. That protection will concern persons thatare nationals of a former if not current Member State, and not interfere with the exclusivecompetence of the Member States over who obtains their nationality and thereby Union citizenship.However, it is conceivable to include in the Withdrawal Agreement provision to amend the FoundingTreaties. That would make it a so-called mixed agreement that needs to be ratified by all remainingMember States.

V. UK citizenship law and devolution

The report also finds that Wales, as other parts of the UK, has considerable devolved powers torealise a non-discriminatory protection of the rights of EU27 nationals, basing its rules on publicservices on residence rather than nationality. The UK government does currently retain the powersover immigration, though.